This case is before the Authority based on a petition for
review filed by the Union under section 7105(a)(2)(D) and (E) of the Federal
Service Labor-Management Relations Statute (the Statute) and concerns the
negotiability of nine proposals regarding the implementation of the Agency's
drug testing program.

The proposals set forth specific information that is to
be provided to employees by the Agency prior to each drug test. Each proposal
specifies that 24 hours prior to each test, the Agency shall inform each
employee to be tested, in written detail, of the information listed in the
proposal.

We find that the proposals are nonnegotiable because they
directly interfere with the Agency's right to determine its internal security
practices under section 7106(a)(1) of the Statute.

II. The Proposals

Proposal 1

In the event drug testing is required under Section
2.A., twenty-four hours prior to each test, the employer shall inform the
concerned employee(s), in detail and in writing, of each of the
following:

A. Whether the test is mandatory or voluntary under this
agreement...

Proposal 2

In the event drug testing is required under Section
2.A., twenty-four hours prior to each test, the employer shall inform the
concerned employee(s), in detail and in writing, of each of the
following:

B. The reasons for ordering the drug
testing...

Proposal 3

In the event drug testing is required under Section
2.A., twenty-four hours prior to each test, the employer shall inform the
concerned employee(s), in detail and in writing, of each of the
following:

C. How the employee was selected for the
test...

Proposal 4

In the event drug testing is required under Section
2.A., twenty-four hours prior to each test, the employer shall inform the
concerned employee(s), in detail and in writing, of each of the
following:

D. The frequency or intervals which they will be
tested...

Proposal 5

In the event drug testing is required under Section
2.A., twenty-four hours prior to each test, the employer shall inform the
concerned employee(s), in detail and in writing, of each of the
following:

E. The consequences of a positive result or refusal to
cooperate, including adverse action...

Proposal 6

In the event drug testing is required under Section
2.A., twenty-four hours prior to each test, the employer shall inform the
concerned employee(s), in detail and in writing, of each of the
following:

F. That after any confirmed positive drug test there
will be an opportunity for them to submit supplemental medical documentation to
support the legitimate use of a specified drug...

Proposal 7

In the event drug testing is required under Section
2.A., twenty-four hours prior to each test, the employer shall inform the
concerned employee(s), in detail and in writing, of each of the
following:

G. The location of drug abuse counseling and referral
services available through the Employee Assistance Program to which he/she can
voluntarily submit prior to testing without reprisal...

Proposal 8

In the event drug testing is required under Section
2.A., twenty-four hours prior to each test, the employer shall inform the
concerned employee(s), in detail and in writing, of each of the
following:

H. The right to union representation concerning the
matter, including but not limited to any meetings, or preparation for meetings,
before, during or after the test is conducted...

Proposal 9

In the event drug testing is required under Section
2.A., twenty-four hours prior to each test, the employer shall inform the
concerned employee(s), in detail and in writing, of each of the
following:

I. [The] [o]riginal sample will be immediately split
upon collection. The agency will retain one part of the split sample in an
appropriate, refrigerated, secure storage facility. If any employee registers a
confirmed positive test result, the employee has the right to have the second
sample submitted to a certified independent lab of his/her choice for retesting
at agency expense.

III. Positions of the Parties

A. The Agency

The Agency contends that the introductory paragraph to
each of the proposals requires that, 24 hours prior to each test, the Agency
shall inform each employee to be tested, in written detail, of the information
listed at each proposal. The Agency asserts that the 24-hour notice of testing
provides employees who are users of illegal drugs with an opportunity to
attempt to purge their systems of drugs. The Agency states that employees may
be able to reduce the likelihood of detection through abstinence, dietary
changes, or intentional dilution or contamination of the sample during the
24-hour notice period. Agency's Statement of Position at 2-3.

The Agency contends, contrary to the Union's assertions,
that the 24-hour notice requirement defeats the purpose of random or reasonable
suspicion testing. The Agency argues that drugs such as amphetamines and
opiates may be excreted within 24 hours, thereby enabling employees using
illegal drugs to be free of those drugs when tested. The Agency asserts that
the proposals directly interfere with management's right to determine the
internal security practices of the Agency under section 7106(a)(1) and are
nonnegotiable. Id. at 3.

The Agency notes that the 24-hour notice requirement in
each of the proposals could be interpreted as allowing even more than 24 hours
notice because the 24 hours are not stated to be a maximum or ceiling.
Therefore, employees using illegal drugs could have additional time to remove
traces of the drugs from their systems prior to the test.

Additionally, the Agency contends that the 24-hour notice
requirement found in the introductory paragraph of each of the nine proposals
is inconsistent with Part II, § 8.E of the Agency's Plan for a Drug Free
Workplace (Plan) for which the Agency asserts a compelling need under section
7117(a)(2) of the Statute. The Agency claims that the Plan's notice
requirements do not allow employees an opportunity to purge their systems prior
to the test. Id. at 4. The Agency also claims that its Plan is
"essential to the efficient execution of the [A]gency's internal security
functions in order to be consistent with the requirements of an effective and
efficient government." Id. at 4-5.

In addition to the arguments as to advance notice which
are applicable to all of the proposals, the Agency makes specific arguments
regarding three of the proposals. The Agency argues that Proposal 7 violates
management's right to take disciplinary action under section 7106(a)(2)(A)
because it requires that information be provided to the employee as to
counseling and rehabilitation services to which the employee may voluntarily
submit after the test is scheduled but prior to testing "without reprisal."
Id. at 12.

The Agency contends that Proposal 8 is inconsistent with
the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the
Department of Health and Human Services (HHS), 53 Fed. Reg. 11979-89 (1988)
(final Guidelines) and, therefore, is nonnegotiable under section 7117(a)(1) of
the Statute, because it allows a Union representative to be present before or
during the time the test is conducted. The Agency argues that the final
Guidelines do not permit any additional personnel to be in the testing area.
The Agency states that section 2.2(d) of the final Guidelines provides that
"[n]o unauthorized personnel shall be permitted in any part of the designated
collection site when urine specimens are collected or stored." Id. at
16, quoting 53 Fed. Reg. at 11982. The Agency also argues that any additional
personnel in the testing area would interfere with management's right to
determine its internal security practices under section 7106(a)(1). Id.
at 14. Finally, the Agency argues that Proposal 8 does not constitute a
negotiable procedure under section 7106(b)(2) or an appropriate arrangement
under section 7106(b)(3). Id. at 17.

The Agency also contends that Proposal 9 is inconsistent
with the final Guidelines, and, therefore, is nonnegotiable under section
7117(a)(1), because it permits split samples, provides for prohibited use of
the results of the split sample, and breaks chain of custody requirements.
Id. at 21-22. By allowing the split sample to be tested at an
independent laboratory of the employee's choice at Agency expense, the Agency
argues that Proposal 9 is inconsistent with the final Guidelines, interferes
with the Agency's internal security requirements under section 7106(a)(1), and
violates management's right under section 7106(a)(2)(B) to make determinations
with respect to contracting out. Id. at 23-30. The Agency also contends
that the retention of part of the sample of urine for the employee's own use,
and the private testing of such a retained sample at a laboratory of the
employee's choosing, are not working conditions under section 7103(a)(14) of
the Statute because they are not requirements of the Government's testing
program under the final Guidelines. Id. at 27.

In a submission in response to an order of the Authority
requesting the parties to address the applicability of Federal court decisions
involving drug testing programs to this case, the Agency argues that Proposals
8 and 9 are nonnegotiable because they are inconsistent with the decision of
the U.S. Court of Appeals for the District of Columbia Circuit in Department
of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v.
FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground). The
Agency argues that the court found that the final Guidelines contain the
exclusive standards for the collection of specimens. Agency's Supplemental
Submission at 2. The Agency also contends that the final Guidelines preclude
unauthorized personnel from being present at the collection site and,
therefore, that Proposal 8 is inconsistent with the final Guidelines. The
Agency also argues that the court's decision regarding the use of split samples
would similarly apply to Proposal 9 and concludes that Proposal 9, therefore,
is inconsistent with the final Guidelines.(2)

B. The Union

The Union contends that the 24-hour notice requirement
found in each of the nine proposals does not interfere with management's
internal security practices. The Union acknowledges that Authority precedent
has held that notice period proposals that frustrate the drug testing program
are nonnegotiable. The Union argues, however, that a 24-hour notice period
would not enable employees who had used illegal drugs sufficient time to erase
the traces of use of the drugs from their systems. According to the Union, a
24-hour notice requirement would not frustrate the purposes of the drug testing
program because it does not allow an employee to defeat the urinalysis. Union's
Response at 5-11.

The Union disputes the Agency's compelling need assertion
for its internal drug testing plan. The Union argues that the Agency "merely
rewords its arguments relating to the 24-hour notice period being nonnegotiable
because it allegedly frustrates the testing program." Id. at 12. The
Union contends that the Agency has not shown how the notice period
substantially undermines the efficacy of the urine testing.
Id.

The Union also responds to the Agency's arguments
regarding specific proposals. As to Proposal 7, the Union states that the
proposal is not intended to shield employees from other actionable offenses
such as theft, insubordination, or unauthorized absences from work. Rather, the
Union contends that the proposal is aimed at protecting employees who
voluntarily join a drug treatment program, comply with the program, and still
maintain acceptable performance on the job. Id. at 17. The Union states
that that is why the proposal did not use the term "discipline" and used
instead the term "reprisal." Id. at 19.

As provided in Proposal 8, each employee to be tested
would be informed, 24 hours in advance, of the right to have a Union
representative present before, during, and after the test. The Union claims
that the "coerced 'donation' of a urine specimen in circumstances of a search
for drug abusers is clearly something an employee could reasonably result [sic]
in disciplinary action, if it already could not be considered a 'formal
meeting' with[in] the comprehension of the Statute." Id. at 22. The
Union argues that having a Union representative present during the drug testing
"is important to the integrity of the program. It assures the employee that a
non-hostile person is available to help protect against harassment and
reprisal." Id. at 23. The Union claims that any internal security
problems, as raised by the Agency, could be overcome by well-managed collection
site procedures.

The Union relies on the Authority's decision in
National Federation of Federal Employees, Local 15 and Department of the
Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island,
Illinois, 33 FLRA 436 (1988) (Rock Island II), as precedent for the
negotiability of the split sample requirement in Proposal 9.

The Union does not claim that Proposals 1 through 9
constitute appropriate arrangements within the meaning of section 7106(b)(3) of
the Statute.

IV. Analysis and Conclusion

Proposals 1 through 9 require that an employee be
notified 24 hours in advance that he or she will be tested for illegal drug
use. For the reasons stated below, we find that the proposals are
nonnegotiable.

In National Federation of Federal Employees, Local 15
and Department of the Army, U.S. Army Armament, Munitions and Chemical Command,
Rock Island, Illinois, 30 FLRA 1046 (1988), remanded as to other matters
sub nom.Department of the Army, U.S. Army Armament, Munitions and
Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May
25, 1988) (order), decision on remand, 33 FLRA 436 (1988), rev'd in
part and remanded as to other matters sub nom.Aberdeen Proving
Ground, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA
936 (1990) (Rock Island III), the Authority held that the agency's drug
testing program for employees in sensitive positions constituted an exercise of
its right under section 7106(a)(1) to determine its internal security practices
because the program, which included a "provision for unannounced random tests,
. . . concerns the policies and actions which are a part of the [a]gency's plan
to secure or safeguard its physical property against internal and external
risks, to prevent improper or unauthorized disclosure of information, or to
prevent disruption of the [a]gency's activities." Rock Island I, 30 FLRA
at 1056. The agency explained that "[u]nannounced random testing has a
deterrent effect on drug users and makes it difficult for drug users to take
action to cover up their use or otherwise evade the tests." Id. In
Rock Island I the Authority held that the agency's use of random testing
as a part of its drug testing program constituted an exercise of management's
right to determine its internal security practices. Id.

Having concluded that there was a connection or "link"
between the agency's decision to use random tests and the agency's security
concerns relating to employees in sensitive positions, the Authority stated
that it would not review the merits of the agency's decision. Id. In
other words, the Authority's inquiry ended with its conclusion that the
agency's use of random testing for employees in sensitive positions was within
the scope of the exercise of management's right to determine its internal
security practices under section 7106(a)(1).

Proposals 1 through 9 in this case require that an
employee be notified 24 hours in advance that he or she will be tested for
illegal drug use. In American Federation of Government Employees, Local 1808
and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37
FLRA No. 116, slip op. at 4-6 (1990) (Sierra Army Depot), we found that
provisions requiring notice to employees 2 hours prior to each random test
directly interfered with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute. We concluded that because
the provisions required 2 hours' advance notice to employees that they would be
required to undergo a random drug test, the provisions limited the Agency's
right to conduct unannounced random tests. Because Proposals 1 through 9 would
require that employees receive 24 hours' notice prior to a random drug test, we
find that those proposals would also limit management's right to conduct
unannounced random drug tests. Indeed, 24 hours', rather than 2 hours', advance
notice affords employees disposed to attempt concealing use of illegal drugs
additional opportunity to circumvent the drug testing. Consequently, we
conclude, consistent with Sierra Army Depot, that Proposals 1 through 9
directly interfere with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute.

We note that the Union has not argued that the proposals
are intended as "appropriate arrangements" within the meaning of section
7106(b)(3) of the Statute. Therefore, we will not determine whether the
proposals constitute an appropriate arrangement under section 7106(b)(3) of the
Statute. SeeSierra Army Depot, slip op. at 6-7. SeealsoNational Federation of Federal Employees, Local 1655 and U.S.
Department of Defense, Department of Military Affairs, Illinois National Guard,
Springfield, Illinois, 36 FLRA 75, 80-81 (1990).

We note, in addition, that it is irrelevant whether the
form of notice or the information contained in the proposals is consistent with
law, rule and regulation. Because the information is required to be provided to
employees when they are given advance notification that they are to undergo a
drug test, the proposals are contrary to the Agency's right to determine its
internal security practices by implementing a random drug testing program.
CompareAmerican Federation of Government Employees, AFL-CIO, Council
of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of
Prisons, Federal Correctional Institution, Danbury, Connecticut, 31 FLRA
95, 98 (1988) (first sentence of Proposal 43, requiring the agency to inform an
employee of the exact drug or class of drugs for which the employee is to be
tested prior to the submission of a urine sample by the employee, but not
requiring that the employee be informed at any particular time, did not
conflict with management's rights).

Because we have found that the proposals directly
interfere with management's right under section 7106(a)(1) of the Statute to
determine its internal security practices and that they are, therefore,
nonnegotiable, we need not address the additional arguments raised by the
Agency regarding specific proposals. We do not need to consider, therefore,
whether a compelling need exists for the Agency's internal regulations
implementing its drug testing program. Similarly, we do not need to consider
whether Proposal 7 interferes with the Agency's right to discipline employees,
whether Proposal 8 is inconsistent with the final Guidelines, or whether the
specific requirement in Proposal 9 that employees be informed of their right to
retain a portion of their sample for testing at an independent laboratory at
Agency expense, if the tested sample is positive, is inconsistent with law and
regulation.

Finally, we note that in Aberdeen Proving Ground,
890 F.2d at 471-73, the U.S. Court of Appeals for the District of Columbia
Circuit found that a proposal allowing Department of the Army employees to
present independent testing results from a split or new urine sample to the
employee's personal supervisor was inconsistent with the final Guidelines and
nonnegotiable under section 7117(a)(1) of the Statute. The court found that a
proposal allowing an employee to refute the medical review officer's
determinations and giving the supervisor the authority to evaluate claims of
medical mistake "would undercut the Guidelines' command that agencies appoint a
medical officer to make final medical decisions." Aberdeen Proving
Ground, 890 F.2d at 473. However, the court also found that a proposal
enabling an employee to provide supplementary evidence, such as new or split
samples, to facilitate a supervisor's personnel decision might be consistent
with the final Guidelines. Id. at 472. SeealsoRock
Island III, 35 FLRA at 938-39.

V. Order

The petition for review as to Proposals 1 through 9 is
dismissed.

Concurring Opinion of Member
Talkin.

I write separately to note that my views vary from those
of my colleagues concerning the extent to which notice to employees that they
have been selected to undergo a random drug test interferes with management's
right to determine the internal security practices of an agency. As I discussed
in my separate opinion in American Federation of Government Employees,
AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot,
Herlong, California, 37 FLRA No. 116 (1990) (Sierra Army Depot), I
question the breadth that the majority would allow that management right with
regard to random drug testing. I do not believe that the right to determine
internal security practices forecloses all notice to employees. Rather, I
believe that such issues should be examined more closely to determine whether
in particular circumstances notice directly interferes with an agency's ability
to conduct random drug testing of employees in sensitive positions, or,
instead, is negotiable under section 7106(b)(2) of the Statute.

As I noted in my opinion in Sierra Army Depot,
there is uncertainty concerning the precise point at which previous use of
various illegal drugs is no longer detectable. Because of this fact and because
the agency would not be foreclosed from monitoring the subject employee during
the period if necessary, I concluded in that case that a notice period limited
to two hours would not directly interfere with the agency's random drug testing
program.

A notice period of twenty-four hours, however, is a
different matter. It is undeniable that the longer the delay between notice and
specimen collection, the more likely it is that the point at which detection is
no longer possible might pass. The length of the delay coupled with the fact
that a twenty-four hour notice period eliminates the Agency's ability to keep
employees under its observation and control create a greater likelihood that
the efficacy of the testing program might be frustrated.(*) I cannot rule out that a twenty-four hour notice
period would have direct substantive repercussions for the Agency's random drug
testing program. Thus, I agree with my colleagues that, by allowing for notice
twenty-four hours in advance of specimen collection, the proposals in this case
cross the "blurry" line that demarcates substantive interference and procedure
and directly interfere with the Agency's management right to determine its
internal security practices.

I cannot agree with my colleagues that the applicability
of section 7106(b)(3) of the Statute to the proposals in this case should not
be addressed because it has not been raised by the Union. In my view, the issue
inheres in the parties' arguments. That is, the Union clearly contends that
employees are adversely affected by being subjected to urinalysis and clearly
intends its proposals to have a palliative effect. The Agency, in arguing
against the negotiability of the proposals, contends that the notice provisions
of the proposals would frustrate the purpose of its drug testing program and
contravene its management right to determine internal security practices. Thus,
as with the proposals in Sierra Army Depot, I believe that the issue of
section 7106(b)(3) is legitimately before the Authority, notwithstanding the
Union's failure to employ the requisite terms of art in its
submissions.

As I discussed in Sierra Army Depot, advance
notice that they have been selected to undergo a drug test affords substantial
benefit to employees. However, I conclude that twenty-four hours of notice also
places a substantial burden on the Agency's ability to accomplish the
objectives of its drug testing program. That amount of notice increases the
likelihood that a drug-abusing employee may evade detection. Consequently, the
value of the testing program is reduced, diminishing, in turn, the level of
protection that the drug-testing program affords the Agency from the effects
and consequences of drug abuse. In these circumstances, I conclude that the
balance must be struck in favor of preserving the Agency's ability to achieve
the objectives of its random drug testing program and that a twenty-four hour
notice period would excessively interfere with management's right to determine
its internal security practices.

For the foregoing reasons I concur in my colleagues'
conclusion that the proposals are not within the duty to bargain. I emphasize
that I address here only the Agency's obligation to bargain over the disputed
proposal in the context of the Executive Order, section 7106 and applicable
precedent with respect to the Statute.

AUTHORITY FOOTNOTES: (If blank, the decision
does not have footnotes.)

2. The Agency also filed a supplemental statement on June
30, 1989. The Union opposed the Agency's submission of that supplemental
statement. Pursuant to section 2424.8 of the Authority's Rules and Regulations,
we have not considered the Agency's supplemental statement because the record
is sufficient for us to decide the issues in this case.

CONCURRING FOOTNOTE: (If blank, the decision
does not have footnotes.)&nb